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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. SAL 0107786
Regular
Oct 16, 2007

MOLLY KIRKPATRICK vs. DOMINICAN SANTA CRUZ HOSPITAL, PSI ADMINISTERED BY OCTAGON RISK SERVICES

This case concerns an injured worker who had cervical spine surgery involving diskectomy, vertebrectomy, decompression, and fusion. The defendant sought reconsideration of an award granting temporary disability benefits beyond the statutory 104-week limit, arguing the surgery was not an amputation. The Appeals Board rescinded the prior award and returned the matter for further proceedings, as the definition of "amputation" in precedent excludes internal body parts like those removed during spinal fusion.

Workers' Compensation Appeals BoardDominican Santa Cruz HospitalOctagon Risk ServicesMolly KirkpatrickIndustrial InjuryCervical Spine SurgeryTemporary Disability IndemnityLabor Code Section 4656(c)AmputationDiskectomy
References
1
Case No. ADJ7951527
Regular
Oct 03, 2016

RONALD COYLE vs. DANE COYLE CUSTOM HOMES, INC.

The defendant sought reconsideration of an award for an applicant's industrial back injury, challenging the timeliness of the utilization review (UR) denial and the necessity of proposed spinal surgery. The Board denied reconsideration, affirming that the defendant failed to prove timely communication of the UR denial as required by law. Furthermore, substantial evidence, including reports from the treating physician and Agreed Medical Evaluator, supported the necessity of the lumbar fusion surgery. The Board found the defendant's arguments insufficient to rebut the expert medical opinions presented.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardIndustrial InjuryUtilization Review (UR) DenialTimelinessFurther Medical TreatmentSpinal SurgeryLumbar FusionRequest for Authorization (RFA)
References
2
Case No. FRE 191206
Regular
Nov 20, 2007

MARY SEPEDA vs. SEPEDA BROTHERS DAIRY, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION on behalf of FREMONT INDEMNITY, in liquidation, REPUBLIC INDEMNITY

This case involves an applicant seeking reconsideration of a workers' compensation award concerning a low back injury sustained through July 13, 1995. The applicant, supported by her treating physician, argued for additional disc replacement surgery at the L4-5 level beyond the previously awarded L5-S1 spinal fusion. The Workers' Compensation Appeals Board granted reconsideration and amended the award to include the L4-5 disc replacement surgery, finding it reasonably required to cure or relieve the applicant's injury based on the treating physician's opinion.

CIGAFremont IndemnityRepublic Indemnitylow back injurypermanent disabilityfurther medical treatmentspinal surgeryL5-S1 fusionL4-5 disc replacementtreating physician
References
2
Case No. ADJ4577451 (WCK 0063127) ADJ336675 (WCK 0063128)
Regular
Sep 10, 2013

EDUARDO GUERRA vs. POMEROY CORPORATION, TRAVELERS INSURANCE COMPANY

The Appeals Board granted reconsideration to review the WCJ's award of total temporary disability and future medical treatment, including spinal surgery. The Board rescinded the WCJ's decision because the record regarding the necessity of spinal surgery was not fully developed. Specifically, Dr. Harf's second opinion report was incomplete due to unobtained diagnostic tests, preventing a definitive recommendation on surgery. The case is returned to the trial level to further develop the medical evidence on the surgery issue and other deferred matters.

Workers' Compensation Appeals BoardReconsiderationFindings and AwardTemporary Disability IndemnitySpinal SurgerySecond Opinion PhysicianUtilization ReviewPenaltiesDiscoveryDeclaration of Readiness to Proceed
References
6
Case No. 2021 NY Slip Op 00608 [191 AD3d 1078]
Regular Panel Decision
Feb 04, 2021

Matter of Peck v. The Donaldson Org.

Harry Peck, a carpenter, sustained a work-related back injury in 2013 and received workers' compensation benefits. After spinal fusion surgery, he was deemed medically unable to return to work. Following authorization for a spinal cord simulator trial in 2018, the employer's carrier alleged that Peck violated Workers' Compensation Law § 114-a, citing surveillance footage inconsistent with his claimed disability. Although a Workers' Compensation Law Judge initially found no misrepresentation, the Workers' Compensation Board reversed, finding a violation and imposing mandatory and discretionary penalties, including disqualification from future wage replacement benefits. The Appellate Division, Third Department, affirmed the Board's decision, concluding that substantial evidence supported the finding that Peck made willful misrepresentations regarding the extent of his disability to physicians.

Workers' Compensation FraudDisability MisrepresentationSurveillance EvidencePenalty ImpositionWage Replacement DisqualificationSpinal Cord InjuryBack PainClaimant CredibilityAppellate Review of Board DecisionMaterial False Statement
References
10
Case No. 2019 NY Slip Op 03749
Regular Panel Decision
May 15, 2019

Allstate Ins. Co. v. Buffalo Neurosurgery Group

The plaintiff, Allstate Insurance Company, appealed an order from the Supreme Court, Nassau County, which denied its motion for summary judgment on a complaint seeking a de novo determination of no-fault insurance benefits and, upon searching the record, awarded summary judgment to the defendant, Buffalo Neurosurgery Group. The case originated from a motor vehicle accident where Christopher Krull underwent spinal fusion surgery. The defendant, as Krull's assignee, submitted a claim for no-fault benefits, which Allstate denied. The matter proceeded through arbitration, with the master arbitrator affirming an award to the defendant. The Appellate Division modified the Supreme Court's order. It granted Allstate's motion for summary judgment on the grounds that the amount of benefits sought by the defendant was not in accordance with the workers' compensation fee schedule, and it deleted the provision awarding summary judgment to the defendant. The court affirmed the denial of Allstate's motion concerning the medical necessity of the surgery, stating Allstate failed to meet its prima facie burden on that issue. The order was affirmed as modified, with costs payable to the plaintiff.

no-fault insurance benefitsworkers' compensation fee schedulesummary judgmentmedical necessityde novo determinationarbitration awardappellate reviewspinal fusion surgeryinsurance law § 5106assignee claim
References
10
Case No. ADJ1124701 (OAK 0304697)
Regular
Jan 25, 2010

GENE THOMAS vs. SLEEP TRAIN MATTRESS CENTER, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) rescinded a prior decision favoring the applicant's spinal surgery, finding that proper procedural steps were not followed. The employer's utilization review (UR) had denied the surgery, but neither party followed the required second-opinion process under Labor Code section 4062(b). The WCAB returned the case to the trial level, allowing the employer ten days from receipt of the decision to object to the surgery and initiate the second-opinion process. This decision aligns with the WCAB's en banc ruling in *Cervantes*, which clarified the procedures for handling spinal surgery disputes after UR denials.

Workers' Compensation Appeals BoardUtilization ReviewLabor Code section 4062(b)Spinal SurgerySecond OpinionCervantes v. El Aguila Food ProductsACOEM GuidelinesExperimental TreatmentEn Banc DecisionAdministrative Director Rules
References
4
Case No. ADJ6619207 ADJ6736606
Regular
May 24, 2010

ALBERTO ALVAREZ vs. AKT DEVELOPMENT CORPORATIONS, INSURANCE OF THE WEST

The Workers' Compensation Appeals Board granted reconsideration of a decision awarding lumbar fusion surgery, finding the WCJ erred by solely relying on the *Cervantes* decision regarding timely utilization review. The Board determined that the defendant's utilization review timeliness was unclear, and the parties had agreed to an Agreed Medical Examiner (AME) to resolve the surgery dispute before *Cervantes* was issued. Furthermore, the Board held that the treating physician's recommendation for surgery must constitute substantial evidence, which was not definitively established here. Therefore, the matter was returned for further development of the record, requiring the treating physician to address the AME's concerns regarding the necessity of fusion surgery.

Workers' Compensation Appeals BoardPetition for RemovalPetition for ReconsiderationJoint Findings Award and OrderIndustrial InjuryLumbar FusionUtilization ReviewCervantes v. El Aguila Food ProductsSubstantial Medical EvidenceExpedited Hearing
References
3
Case No. ADJ7117844
Regular
Dec 05, 2011

Tommy Robison vs. CITY OF MARICOPA

The Workers' Compensation Appeals Board denied reconsideration of an award of spinal surgery for Tommy Robison. The employer argued the award was improper because the Spinal Surgery Second Opinion (SSSO) report was untimely and they had implicitly agreed to an Agreed Medical Evaluator's (AME) opinion. The Board found the employer failed to prove a timely objection to the treating physician's recommendation or timely Utilization Review at the hearing. Therefore, the treating physician's recommendation for surgery was controlling, despite the tardiness of the SSSO report, and an AME's opinion did not waive the SSSO process.

Workers' Compensation Appeals BoardPetition for ReconsiderationDeny ReconsiderationSpinal SurgeryAgreed Medical EvaluatorSecond Opinion EvaluatorTimelinessLabor CodeUtilization ReviewTreating Physician
References
5
Case No. ADJ1505960 (RDG 0127227)
Regular
Jan 05, 2010

JOSEPH RHOADS vs. WESTERN READY MIX, INC., TRAVELERS PROPERTY \& CASUALTY

The Workers' Compensation Appeals Board rescinded a prior award of spinal surgery, remanding the case for further proceedings. The Board found that the defendant's objection to the treating physician's spinal surgery recommendation failed to follow proper utilization review procedures as outlined in *Cervantes v. El Aguila Food Products, Inc.* The defendant must now adhere to the prescribed utilization review and objection timelines, starting with a new report from the treating physician. The Board expressed no final opinion on the applicant's entitlement to surgery or the attorney's fee pending the WCJ's new decision.

Workers' Compensation Appeals BoardRemovalReconsiderationFindings and AwardWorkers' Compensation JudgeIndustrial InjurySpinal SurgeryTreating PhysicianSecond Opinion PhysicianAmerican College of Occupational and Environmental Medicine Guidelines
References
3
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